Jones v Clarke - [2012] TASSC 21

[2012] TASSC 21

COURT: SUPREME COURT OF TASMANIA

CITATION: Jones v Clarke [2012] TASSC 21

PARTIES: JONES, Senior Constable Steven
v

CLARKE, Daniel Reginald

FILE NO/S:  1068/2011
DELIVERED ON:  4 May 2012
DELIVERED AT:  Burnie
HEARING DATE:  16 April 2012
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally – Review of sentences – Whether suspended term of imprisonment manifestly inadequate.
Aust Dig Magistrates [272]
Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Suspended sentence of imprisonment – Breach of conditions of suspension and sentence following breach – Whether "unjust" to activate suspended sentence.
Sentencing Act 1997 (Tas), s27(4C).
Tanner v Brown [2011] TASSC 59, followed.
Aust Dig Criminal Law [3388]

REPRESENTATION:

Counsel:
             Applicant:  S J Bender
             Respondent:  S G Wright
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Levis Stace & Cooper

Judgment Number: [2012] TASSC 21
Number of paragraphs: 63

Serial No 21/2012
File No 1068/2011

SENIOR CONSTABLE STEVEN JONES v DANIEL REGINALD CLARKE

REASONS FOR JUDGMENT CRAWFORD CJ
4 May 2012

The applicant moved the Court to review two sentences orders of a magistrate, Mrs Bartlett, made on 11 November 2011.

The first order was a re-sentence for offences consequent upon breaches of conditions of a suspended sentence imposed by the same magistrate on 5 August 2010. After he had pleaded guilty to them all, the magistrate had sentenced him to imprisonment for six months, wholly suspended on condition he be of good behaviour and commit no offence of dishonesty and no offence under the Misuse of Drugs Act 2001 or the Bail Act 1994 for a period of two years. On an oral application under the Sentencing Act 1997, s27(1), the magistrate re-suspended the term of imprisonment for a further two years.

The second order followed the respondent's pleas of guilty to nine offences committed between March 2009 and July 2011. Eight of them were after 5 August 2010 and committed in breach of a condition of the suspended sentence. For the nine offences the magistrate sentenced him to imprisonment for four months, all of which was suspended on condition that for two years he did not commit an offence punishable by imprisonment.

Grounds of review

The first ground of the motion is that both orders were manifestly inadequate. The remaining grounds raise four specific errors, three of which relate to both orders and the last to the re-sentence only. The grounds are:

1The sentences (orders) were manifestly inadequate in the circumstances of the case.
2The magistrate erred in fact and/or law by placing insufficient weight upon the offending of the respondent.
3The magistrate erred in fact and/or law in accepting material put in mitigation that had no mitigatory weight.
4The magistrate erred in fact and/or law by placing undue weight upon factors relating to rehabilitation.
5The magistrate erred in law in that she failed to give reasons why it was unjust, under the Sentencing Act 1997, s27(4B), to activate the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jones v Clarke

Details

AGLC: Jones v Clarke [2012] TASSC 21
Case: [2012] TASSC 21
Decision Date: 4 May 2012

CaseChat Overview and Summary

Jones v Clarke was a case heard in the Magistrates Court of Tasmania, where the primary matter in dispute was the adequacy of a sentence imposed on the defendant, Clarke. The plaintiff, Jones, sought a review of the sentence, arguing that a suspended term of imprisonment was manifestly inadequate in the circumstances of the case. The court was tasked with determining whether the sentence was appropriate and if it warranted a review.

The legal issues before the court centred on the principles of sentencing and the adequacy of a suspended sentence. The court had to consider whether the sentence imposed by the magistrate was manifestly inadequate and whether there were grounds to intervene in the sentencing decision. This involved an examination of the principles of sentencing, the nature of the offence, and the circumstances surrounding the case.

The court conducted a review of the sentencing process and considered the arguments presented by both parties. The court found that the magistrate had appropriately considered the relevant factors in imposing the sentence. The court concluded that the sentence was not manifestly inadequate and did not warrant a review. The court upheld the magistrate's decision, affirming the appropriateness of the sentence.

As a result of the court's decision, the motion to review the sentence was dismissed. The court's decision affirmed the magistrate's sentencing decision and upheld the imposed sentence as appropriate in the circumstances of the case.

Orders